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Letting the jurors ask the questions

A new rule will allow jurors in civil cases to ask the questions, beginning July 1.

“This proposal was the subject of much discussion — both internally by the Illinois Supreme Court Rules Committee at several of its meetings and at a public hearing in May 2011,” said Chief Justice Thomas L. Kilbride. “Based on the comments of those who have used or seen the procedure at trials, such a rule enhances juror engagement, juror comprehension and attention to the proceeding and gives jurors a better appreciation for our system of justice.

“The rule is written so that its implementation rests with the discretion of the trial judge and with safeguards, so that the testimony it elicits complies with the rules of evidence.”

The procedure will work this way: At the conclusion of questioning of a witness by attorneys, the trial judge will determine whether the jury will be afforded the opportunity to question the witness. If questions are deemed appropriate, jurors will be asked to submit any question they have for the witness in writing. No discussion regarding the questions is allowed between jurors. The bailiff will collect any questions and present them to the judge who will mark them as exhibits and make them part of the record.

The judge will read the questions to all the attorneys outside the presence of the jury and give counsel an opportunity to object to the question. The trial judge will rule on any objections, and the questions will either be admitted, modified or excluded.

The trial judge will ask each question that is permitted and will instruct the witness to answer only the question presented. The judge will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

Princeton lawyer and former judge Terry Madsen has mixed feelings about the new rule.

“This process clearly gives a sense of inclusiveness to a trial, but I’m not a big fan of active juror participation in questioning,” Madsen said.

Madsen said the rule allows the opportunity for jurors to get caught up in extraneous issues and can cause unknown issues when jurors aren’t allowed to question certain witnesses or when a juror’s questions aren’t asked. In addition, sometimes in civil cases a lengthy process is involved in limiting questions along certain lines for a variety of good reasons, so when the lawyers don’t go down that road and a juror wants to and the judge refuses, there is confusion — and possible suspicion — among the jurors.

Another negative factor is that jurors could become adversaries of witnesses instead of triers of fact.

“I think it’s hard enough to follow a line of testimony without simultaneously trying to formulate questions of a juror’s own, especially now that cameras are being introduced into courtrooms and jurors will have a chance for a moment of trial fame that they will want to be sure doesn’t come off as trial shame,” Madsen said.

However, Madsen said the process was allowed as far back as Lincoln’s day, so allowing it again isn’t exactly a new idea. In addition, it is permitted by more than half of all states and all of the federal circuits.

“The bottom line is that it may make jurors feel more involved, and it may make the process seem more inclusive and transparent,” Madsen said. “So if it helps folks feel better about the process without hurting anything, why not try it?”